Violations of the Fair Debt Collection Practices Act (Fdcpa)

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COUNTERCLAIM I VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT (FDCPA) COMES NOW, Defendant, and Counterclaims against Plaintiff for violations of the Fair Debt Collection Practices Act as follows: 1. Defendant is a “consumer” as that term is defined by 15 U.S.C. §1692a(3). 2. Defendant is a natural person allegedly obligated to pay a debt; in this case Plaintiff alleges that Defendant is obligated to pay a debt to Plaintiff. 3. The obligation which Plaintiff alleges Defendant is obligated
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  COUNTERCLAIM IVIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT (FDCPA)COMES NOW, Defendant, and Counterclaims against Plaintiff for violations of the Fair Debt CollectionPractices Act as follows:1.Defendant is a “consumer” as that term is defined by 15 U.S.C. §1692a(3).2.Defendant is a natural person allegedly obligated to pay a debt; in this case Plaintiff alleges thatDefendant is obligated to pay a debt to Plaintiff.3.The obligation which Plaintiff alleges Defendant is obligated to pay is a “debt” as that term is defined by15 U.S.C. §1692a(5).4.The alleged contract sued upon is believed by Defendant to be a purported monetary obligation arisingfrom transactions on a credit card made primarily for personal, family, or household purpose; the purported account is personal rather than a business account.5.Plaintiff is a “debt collector” as that term is defined by 15 U.S.C. §1692a(6).17.Plaintiff uses the United States mail in the regular collection of debts owed to another.18.To the best of Defendant’s knowledge and belief, Plaintiff has used the mails of the United States toattempt to collect from Defendant an alleged debt purportedly previously owed to an “srcinal creditor,”other than Plaintiff, which has purportedly been “charged off.”19.Plaintiff has violated the Fair Debt Collection Practices Act, 15 U.S.C. §1692e, because it made and/or employed false, deceptive and misleading representations and/or means in connection with the instantcause of action. Said false, deceptive and misleading representations were and have been made and are being made to Defendant and others as more specifically set out hereafter. Some or all of said false,deceptive and misleading representations were knowingly and intentionally made by Plaintiff.20.Plaintiff has violated the Fair Debt Collection Practices Act, 15 U.S.C. §1692d because it has engaged inconduct the natural consequence of which is to harass, oppress, or abuse the Defendant in connectionwith the instant Complaint, and as a result of the filing of said Complaint, and in other actions as morespecifically set out hereafter. Plaintiff knowingly and intentionally engaged in harassing, oppressive,and/or abusive conduct toward the Defendant. Plaintiff knew or should have known that the naturalconsequences of said conduct would be to harass, oppress, or abuse the Defendant.  21.Plaintiff has represented to Defendant that it has the legal right to collect the sums sought in the amountof $5,653.37 and $73.00 in court costs. Plaintiff does not in fact have the legal right to collect the sumsclaimed from Defendant, or any other amount, and knew or should have known same when it filed theinstant lawsuit against Defendant.22.Upon information and belief, Plaintiff does not have the legal right to collect this sum because no sum isowed by Defendant to Plaintiff, and/or any party under whom Plaintiff is claiming to hold an assignment,and further, no valid assignment to Plaintiff exists. Although Plaintiff’s Complaint does not expresslyallege same, on knowledge and belief, Defendant believes Plaintiff is claiming to hold the alleged debtsued on by assignment from another entity. By falsely representing that there exists a proper and legallyvalid assignment between Plaintiff and the srcinal creditor of the account, if Plaintiff is so representing,and that Plaintiff has a right of recovery against Defendant thereon, and by filing a lawsuit againstDefendant allegedly thereon, Plaintiff has violated the FDCPA, and is liable to Defendant for statutoryand actual damages thereon, attorneys’ fees, and costs. Said violations include, but are not limited toviolations of 15 U.S.C. §1692e, et seq. and 15 U.S.C. §1692d, et seq.23.Plaintiff has made knowing and intentional misrepresentations or misleading and/or false representationsas to the legal status, character, and/or amount of the debt in violation of 15 U.S.C. §1692e(2), and inviolation of U.S.C.15 §1692e(10).24.To the best of Defendant’s knowledge and belief, at the time of filing the instant lawsuit, Plaintiff doesnot have in its possession, and is unable to acquire or produce, the entire “Purchase Agreement” (or other similar name) pursuant to which it claims to have purchased the said purported “account” of Defendanton which it is suing herein. Plaintiff will only produce, and will only be able to produce, a “Bill of Sale,”“Bill of Sale and Assignment,” or other document having a similar name, which will make no specificreference to Defendant or any “account” allegedly owed by Defendant, and will on its face be anincomplete document, explicitly and specifically making reference to another “master agreement”,consisting of the above “Purchase Agreement” or other document having a similar name, to which thesaid “Bill of Sale” is made subject to, and the terms of which control and govern the said “Bill of Sale.”The production of an authenticated “master agreement” or “Purchase Agreement” as described above isnecessary, inter alia, for Plaintiff to be able to make out a case against Defendant herein. At the time of filing the instant lawsuit, Plaintiff is aware, or should be aware, of the above. Thus, for this reason also,Plaintiff has knowingly and intentionally filed the instant lawsuit under circumstances in which it knowsor should have known that it would be unable to make out any claim against Defendant herein. The aboveconstitute violations by Plaintiff of 15 U.S.C. §1692d, 15 U.S.C. §1692e, and 15 U.S.C.15 §1692f.25.By filing suit, Plaintiff made the false, knowing, and intentional representation to Defendant and all other  persons having or acquiring knowledge of the claims of Plaintiff against Defendant, and said suit,including credit reporting bureaus, and persons or entities Defendant might seek to obtain credit from, present or future potential employers of Defendant, and other persons and entities that it has the legalright to pursue this account in this Court. By filing the said action with this Court, Plaintiff has madefalse, knowing and intentionally deceptive and/or misleading representations to the general public,creditors of Defendant, persons or entities Defendant might seek to obtain credit from, present or future potential employers of Defendant, and others with respect to said account, all of which constitute  violations of the Fair Debt Collections Practices Act and the Fair Business Practices Act.26.Some or all of Defendant’s Counterclaim is based on the following facts:(a) The alleged “debt” or “account” on which Plaintiff is basing its claim of right to sue Defendant wasacquired by Plaintiff, or some predecessor party, at auction, or by some other method of acquisition, froma bank or other financial institution, in blocks of said “accounts” as large as 5,000, 10,000, 15,000,20,000, and/or 25,000 or more in a single transaction.(b) In said auction, Plaintiff, or some predecessor party, bid on the block of “accounts” in which the“account” allegedly owed by Defendant was included, or acquired said account along with a largequantity of other accounts by some other means.(c) At the said auction, or by some other method of acquisition, when either Plaintiff or some predecessor  party acquired the block or group of “accounts” which included the “account” allegedly owed byDefendant, no actual hard copies, or indeed any records in any form whatsoever of any of the followingwere acquired, or transferred from the bank or other financial institution to Plaintiff or the predecessor  party with respect to the following:(1) any credit card or other agreement, or contract with respect to the specific alleged “account” of Defendant’s individually;(2) monthly statements of account, records of charges, payments, interest, fees, or similar records or documents necessary to verify and prove that the said “account” is in fact owed by Defendant, and;(3) the correct total amount actually owed, if any, by Defendant; and(4) any accounting or financial records, including the above records, necessary to prove the breakdown of the purported “total” amount alleged to be owed, with respect to its components, such as principal,interest, late fees, over limit fees, etc.27.Some or all of Defendant’s counterclaim is further based on the following facts:(a) At the said auction, or by some other method of acquisition, the information transferred between buyers and sellers of accounts (purportedly including the instant account allegedly owed by Defendantand sued on herein) consisted solely of a “line entry” in digital or electronic format containing, at most,only a name, address, social security number, account number, telephone number, and a “total” dollar amount, without breakdown, and possibly some other very minimal information such as the alleged“charge-off’ date.(b) Said “total” dollar amount was not broken down into principal, interest, fees, late charges, or in anyother manner. To the best of Defendant’s knowledge and belief this was the method by which the dataregarding Defendant’s alleged debt was transferred from a third party to Plaintiff or some predecessor  party to Plaintiff.(c) At the time of filing the instant lawsuit, Plaintiff does not have in its possession records or documentssufficient to prove the necessary elements of its purported claim against Defendant, and will not acquiresaid records or documents, if ever, until after the filing and service of Defendant’s instant Answer andCounterclaim. At the time of filing the instant lawsuit Plaintiff was aware or should be aware that it didnot have in its possession records or documents sufficient to prove the necessary elements of its purported claim against Defendant, and further that it will not be able to acquire same.(d) Further, Plaintiff has made no effort to verify or substantiate either:(1) the documentation necessary to prove that Defendant in fact currently owes a debt of some amountwhich it is supposedly acquiring; and(2) the correct amount (if any) which it is claimed is owed by Defendant.(e) After acquiring the block of accounts, either Plaintiff or some predecessor party processed the block of accounts through a computer software algorithm “scrubbing” program, designed to select specific  “accounts” to file suit on, or otherwise attempt to collect.(f) Said scrubbing program was optimized to rank said accounts according to two primary criteria, in thefollowing order of importance:(1) Those “account debtors” LEAST LIKELY to obtain legal representation to defend a lawsuit, or otherwise resist collection efforts, without reference to the validity or accuracy of said debt. As example,said software programs normally rank individuals of the female gender; persons believed to have lowincome levels; and/or lower than normal education levels as being less likely to obtain legalrepresentation or otherwise resist collection,(2) Those “account debtors” from whom collection might be more easily made, i.e., having employmentfrom which wages could be garnisheed, or those having bank accounts, or owning vehicles or other  property which could be seized, without reference to the validity or accuracy of said debt.(g) The above described computer software “scrubbing program” contains no software criteria, softwareroutines, or subprograms to determine the validity of said “debt”, and no software criteria, softwareroutines, or subprograms to determine the accuracy or validity of the amounts claimed to be owed.(h) Said software program and “scrubbing” procedure was used to determine which account debtorswould be sued.28.All of the information set forth in Paragraphs 1 through 27 above is and was known to Plaintiff, or shouldhave been known to Plaintiff at the time Plaintiff filed the instant Statement of Claim against Defendant.29.Plaintiff has no knowledge or information, and none available to it, with respect to the allegedcomponents, character, amount or legal status of the alleged debt or “account” it is suing Defendant onherein, including but not limited to the respective amounts of same which is alleged to be principal,interest, fees, and other charges. Plaintiff also does not have in its possession or available to it the srcinalor an accurate copy of the specific “agreement” under which the above alleged account was srcinated.Also, Plaintiff also does not have in its possession or available to it the srcinal or an accurate copy of allor any of the subsequent amended agreements which were from time to time made and in effect withrespect to said account.The terms and conditions of both the “srcinal” agreement and subsequent amendments governed the saidaccount, including such things as interest rates, late fees, payment periods, grace periods, and pertinentdates, which agreement, agreements, and all amendments thereto determined the exact amount due andowing under said agreement or agreements, to the extent that any amount is due and owing with respectto said alleged account. At the time Plaintiff filed the instant action Plaintiff knew or should have knownthat it lacked the above agreements and knowledge, and is unable to acquire same. Plaintiff hasknowingly and illegally misrepresented that the said “principal” amount sued for herein in the amount of $5,653.37 actually constitutes principal, when in truth and fact said amount contains and representsinterest, late fees, and other fees, in addition to principal. Plaintiff has unlawfully claimed “interest oninterest” by said representations in said Statement of Claim.30.Based on the allegations above and further set forth herein, Plaintiff has violated 15 U.S.C. §1692d byengaging in conduct the natural consequence of which is to harass, oppress, or abuse Defendant by,without limitation; Continuing to pursue collection of disputed and unverified debt; and filing suit on aninvalid debt, forcing Defendant to defend against an invalid action, and further, and in addition thereto,knew or should have known that it has engaged in such conduct, and the said consequences thereof.31.
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